In view of these circumstances, defendant is compelled to seek an enlargement of time in order to secure the administrative record which constitutes the factual basis for her response.

Wherefore, defendant respectfully requests that the Court grant an enlargement of time of 60 days, to and including January 6, 1984, within which to answer or otherwise move with respect to this complaint.

Defendant's November 7, 1983, Motion For Enlargement Of Time Within Which to Answer Complaint at 1-2.

On November 10, 1983, the Court entered an Order denying the defendant's motion. The November 10, 1983, Order further directed the defendant to answer, or otherwise move, with respect to the Complaint by November 24, 1983. The Court noted that it found a 60 day extention "to be unreasonable, particularly in a case involving a request for judicial review of the denial of disability benefits."

The defendant failed to answer, or otherwise move, with respect to the Complaint by November 24, 1983. On December 13, 1983, upon the application of the plaintiff, the Clerk of this Court, pursuant to Fed. R. Civ. P. 55(a),
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duly entered the default. Plaintiff then moved the Court to schedule further proceedings in this case pursuant to Fed. R. Civ. P. 55(e).
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That motion was granted by the Court on December 20, 1984.

Subsequently, the defendant moved to rescind the default. The Court, by Order of December 30, 1983, granted the defendant's motion noting that "because of an administrative error within the Court, defendant's counsel did not receive notice of the Court's November 10, 1983 Order requiring the defendant to answer, or otherwise move with respect to the complaint, by November 24, 1983." The Court, perhaps prematurely, further noted that it appeared "that defendant's failure to answer was not caused by a lack of diligence or good faith" and ordered the defendant to answer, or otherwise move, with respect to the complaint on, or before, December 30, 1983, which is what the defendant had asked for.

Thus, the Secretary, with huge resources
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at her command, contends that because of "holiday vacation schedules", this plaintiff must wait yet longer for a United States Court to reach the merits of a claim involving the plaintiff's very subsistence. The January 4, 1984 Motion For Enlargement of Time will be denied.

THIS COURT IS NOT POWERLESS TO ACT IN THE FACE OF THE CONTUMACY OF THE DEFENDANT

The Court is now faced with the decision of how best to proceed. Fed. R. Civ. P. 11, as amended, reads, in part:

Every pleading, motion, and other paper of an party represented by an attorney shall be signed by at least one attorney of record. . . . The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction.

. . . .

As the note of the advisory committee makes crystal clear, "the words shall impose" in the last sentence [of Fed. R. Civ. P. 11] focus the court's attention on the need to impose sanctions for pleading and motion abuses."

Fed. R. Civ. P. 11 parallels Fed. R. Civ. P. 26(g). That rule "makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 U.S.C. § 1927, and the court's inherent power. . . . The nature of the sanction is a matter of judicial discretion to be exercised in the light of the particular circumstances." Fed. R. Civ. P. 26(g) advisory committee note.

1. Plaintiff was employed principally as a service station attendant and automobile mechanic until May, 1980, when as a consequence of the cumulative effects of multiple impairments -- including accelerated hypertension, cardiovascular disease, excessive fat content in his blood and gouty arthritis, combined with plaintiff's adverse reactions to medications which he is required to take daily for control of hypertension -- plaintiff became no longer able to engage in any substantial gainful employment. Complaint para. 5.

2. On January 6, 1981, plaintiff filed an application for disability and disability insurance benefits under the provisions of 42 U.S.C. Sec. 401 et seq. On April 21, 1982, plaintiff filed an application for supplemental security income under the provisions of 42 U.S.C. Sec. 1381 et seq. These applications were denied and plaintiff made a timely request for reconsideration of the denials. Upon reconsideration, defendant affirmed the denials. " Complaint para. 6.

3. On September 24, 1982, plaintiff made a timely request for an evidentiary hearing before an Administrative Law Judge. The hearing was held on January 25, 1983 in Washington, D.C. Complaint para. 7.

4. On February 25, 1983, the Administrative Law Judge rendered a decision which found that plaintiff was not entitled to disability or disability insurance benefits, and that plaintiff is not eligible for supplemental security income. Complaint para. 8.

5. Plaintiff made a timely request for Appeals Council review of the decision of the Administrative Law Judge, and made timely submissions to the Appeals Council of additional evidence and written argument. On July 14, 1983, the Appeals Council denied the request for review and affirmed the decision of the Administrative Law Judge. Complaint para. 9.

The defendant's assertion, contained in her November 7, 1983 Motion for a 60-Day Extension, that the administrative record was not available is without merit. Obviously, the Appeals Council must have had the record before it on July 14, 1983, when it denied the plaintiff's request for review and affirmed the decision of the Administrative Law Judge. To accept the defendant's assertion, this Court would have to believe that the record had been lost or somehow "disassembled."

The Court will, of course, examine the administrative record. But it will do so in the light of the aforementioned facts which have been established and the administrative record. A hearing will be held at which the parties will provide the Court with oral argument as to whether, in the light of the established facts and the record, the Secretary's decision is supported by substantial evidence.

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